Remaking Indians, Remaking Citizens: Peruvian and Mexican Perspectives on Criminal Law and National Integration

Lior Ben David, Tel Aviv University

Abstract

At the end of the 20th century, recognition of indigenous peoples’ rights in Latin American constitutions has undergone a significant evolution, while legal reforms officially“turned” some of these countries into multicultural nations. For many scholars, this multicultural shift was particularly prominent on the background of many years, in which the legal systems of Latin America ignored, excluded, assimilated and repressed indigenous peoples, portraying “the Indian” as an anomaly in a society of free end equal citizens. This article examines the images, representations and treatment of the Indians and "the Indian Question" in the Peruvian and Mexican Criminal Law duringthe first half of the 20th century. In both countries, I will argue, the sphere of criminal justice played a significant role in remaking Indians and citizens, as it became an important arena in which different assimilationist and integrationist approaches towards the Indians were confronted. In a broader context, the historical-comparative examination of these two cases can also further our understanding of the ways by which racial classifications within the criminal law and the criminological discourse were sometimes used not only to exclude “problematic” social groups but also to promote, to some extent, their inclusion into “the national community”.

Introduction

On May 27th, 1921, José Choqque’s dead-body was found hanging by the side of the road leading to one of the villages at the province of Canchis, Peru. Signs of violence were still noted on the body and so was the poncho’s tip wrapping around Choqque’s neck, which served his murderers as a hanging rope. Circumstantial evidences led the local authorities to the three Espinoza brothers, with whom Choqque had a quarrel a short time before he was killed. This tragic event was not so unusual; in fact it was one of many violent cases which took place in this region during that time.[1]The criminal act committed by the Espinoza brothers had nothing to do with customs, beliefs or any other cultural practices which could be considered as “Indians” or “indigenous”. Nevertheless, in its verdict from September 1925, the court in Cuzco referred not only to the essence of that crime but also to the nature of its perpetrators, who according to the court’s ruling were “illiterate, semi-civilized Indians, with absolutely no sense of culture”.This statement did not only reflect the court’s observation of the defendants; it was rather an implementation of the provisions of the new Peruvian penal code that had become effective about a year earlier. For the Espinoza brothers, there was a practical and useful meaning to these legal provisions and to the way by which they were classified by the court according to them: Their classification as semi-civilized Indians enabled the court to reduce their prison punishments significantly and for two of them, the meaning of that reduction was an immediate release from jail[2].

That racial categorization of the Espinoza brothers as semi-civilized Indians and its legal outcome – their early release from prison – was it an act of exclusion or inclusion?Their case, I think, can serve as a good starting point to reconsider the roles played by criminal legal systems within national projects for the assimilation or integration of indigenous peoples and to reevaluate their functions as mechanisms for social inclusion and exclusion.These issues, of course,are relevant to many countries in Latin America and elsewhere; countries that were subject to processes of colonization, whose colonial legacy, including its legal component, continued to shapetheir socio-ethnic relations for countless years after gaining independence.

At the end of the 20th century, recognition of indigenous peoples’ rights in Latin American constitutions has undergone a significant evolution, whilelegal reforms enacted during the last few decadesofficially and constitutionally “turned” some of these countries into multicultural nations.[3] For many scholars, this multicultural shift was particularly prominent on the background of many years, in which the “legal systems of Latin America ignored, excluded, assimilated and repressed indigenous peoples”.[4]According to Grote, in this pre-multicultural era, “the insistence on assimilationoften suggests that Indians could not be treated as full citizens before they had not adopted as their own the individualistic attitudes of their mestizo surroundings. In this perspective Indians were either to be treated as minors or incompetents whose existence and behavior should be monitored and controlled, or as individuals sophisticated enough to be assimilated and detribalized, and therefore not entitled to any special protection.” “In either alternative”, he concludes, “The status as Indian appeared as an anomaly in a society of free end equal citizens”.[5]

This paper examines the images, representation and treatment of the Indians and "the Indian Question" in both Peruvian and Mexican criminal lawduring the first half of the 20th century. At that time,Peru and Mexico, two major former centers of pre-Columbian civilizations and Spanish colonial domination in Latin America, were also two countries in which the indigenous past and present have played an important role in constructing "the national community".In the second decade of the 20th century the “Indian question” rose to unprecedented saliency in the public and political agendas of both countries. In Peru, the Southern provinces of the Andes were experiencing increasing social unrest, which took the form of violent clashes between Indian peasants and local landowners that were often described as Indian revolts. Mexico at that period was even more tumultuous: 1910 saw the eruption of the Mexican Revolution in which many Indians took part demanding “land and liberty” (tierra y libertad). The “Indigenismo,” in its promise to protect the Indians and to effect their integration within the modern Nation State, was quickly incorporated into the official ideology of various political regimes that took power in both countries.

The Indigenismo, it is to be stressed, was neither a consolidated ideological movement nor a unified political party.Its flag-bearers, the Indigenistas, were Creole or mestizo intellectuals aspiring to resolve the “Indian question,” drawing upon a belief that the key to a national future, to progress and modernization, lay in the assimilation or integration of the Indians.While assimilation of the Indians on a national scale was hardly a novel idea, Indigenist discourse during the period in question sharpened the distinction between “integration”, as an idea of mutual convergence, and “assimilation”, as a unidirectional process wherein to become a modern Peruvian or Mexican one must cease to be “Indian”. The novelty, moreover, introduced by the Indigenismo was manifest not only in discourse but also in a range of practices and projects in which, contrary to prior undertakings, efforts were made to realize theoreticalapproaches towards integration and assimilation. In both states the influence of the Indigenismo was far-reaching,as evident in a wide scope of areas such as politics, education, agrarian policy, art, literature, archeology, and more.In the fields of criminology and anthropology, for example, new positivist conceptions - frequently paired with well-established racial and cultural observations- served the Indigenistasto investigate and analyze the problem of "Indian criminality" within the more comprehensive discourse on the position of the Indians within the nation, and the nation's identity in general. In addition to the Indigenist discourse, Peru and Mexico also had a lot in common in the legal sphere. Peruvian and Mexican jurists, influenced by the positivist school of thought, adopted the view of criminal law as a means of social defense – an idea given expression in their penal codes of the 1920s and 1930s. Furthermore, in accordance with the zeitgeist whichDuncan Kennedy characterized as the “social era” of law,[6] Peru and Mexico (as well as other countries) saw the law as a tool for social engineering, a way to correct society’s deficiencies, improve the conditions of certain social groups and above all, as one of the means to obtain national integration.

This said, despite all the similarities between these two states, within the legal arena Peru and Mexico endorsed radically differing approaches to the question ofwhether or not to grant explicit legislative recognition to what was often perceived and described as social, cultural or racial differences between the Indians and other constituents of the population.Peruvian legislators of the time – employing an Indigenist stance and manifesting a sense of continuity and identification with their colonial past (or at least parts of that past) - were willing to adopt special tutelary legislation for the Indians. Their Mexican counterparts, on the other hand - imbued with the liberal-republican tenets bequeathed by the mid-nineteenth century alongside the sense of resurrection instilled by the Mexican Revolution - stood by the unyielding principle of equality before the law.The discrepancy marking the attitudes of these states was also clearly apparent in their criminal legislation.While the Peruvian criminal codeof 1924 accorded a special penal treatment to Indian criminals, who were classified in this code into different ethno-legal categories, the Mexican criminal codes of that époque tended toavoid any specific or explicit reference to the Indian populations and reflected thus a different perception of their social realty, in which all Mexicans were considered as equal citizens under the law.

In a way, these different legislative attitudes of the Peruvian and Mexican criminal codes towards the Indians represent the two alternatives or polarities of the “assimilationist approach” in Grote’s argument: The treatment of Indians as quasi-legal minors (Peru) and the avoidance of any special protective treatment (Mexico). However, as I will argue in this paper, during the heyday of the Peruvian and Mexican indigenismo, the sphere of criminal justice played even a more significant role in remaking Indians and citizens, as it became an important arena in which different assimilationist and integrationist approaches towards the Indian populations were confronted. The field of criminal law was used by Peruvian and Mexican jurists, prosecutors, criminologists and anthropologists not only to question the anomaly of the Indians and their legal status but also to reexamine the anomaly of the social order in these countriesand to redefine the identity of their nations. Moreover, in a broader context which goes well beyond the Peruvian and Mexican cases, the examination of these two cases can also further our understanding of the ways by which racial classifications within the criminal law and the criminological discourse were sometimes used not only to exclude “problematic” social groups but also to promote their inclusion into “the national community”.

Peru: Inclusion through racial classification?

In 1924, the Peruvian Congress introduced a new Penal Code, which replaced the previous one from 1862. Its enactment, together with the Constitution and the Code of Criminal Procedure legislated four years earlier, reflected the desire of the regime to reform and modernize the Peruvian legal system, as part of its vision and effort to modernize and develop the Peruvian state. This spirit of progress and modernization was manifested in new concepts and scientific innovations in the fields of penology and positivist criminology that were included in the provisions of the new Penal Code.[7] One of its clear and important innovations was the treatment it accorded to a special “category” of criminals: Indians that were classified as “semi-civilized” or “degraded by servitude and alcoholism”. According to article 45 of this code, when a criminal act (any criminal act!) was committed by an Indian in this category, the Peruvian judges were required to consider his “mental development", his "cultural level" and customs, and then to punish him “prudently”, as an offender with limited responsibility. The meaning of this was a legal optionto reduce his punishment significantly. In addition, when dealing with this category of Indian-criminals, article 45 also authorized the courts to substitute punishments of penitentiary and prison for “security measures” (medidas de seguridad) such as sentencing the accused to an agricultural penal colony or a school for arts and crafts.

Hence, in 1924 the Indian population of Peru was formally and explicitly introduced into the national penal code of the republic, bringing an end to 100 years of supposed equality before the law. Obviously, the idea that the law should distinguish between Indian criminals and other people who committed the same criminal acts was not completely new in this part of the world. In fact, a similar perception characterized the Spanish-colonial legislation. The colonial law, which was part of the Recopilación de Leyes de los Reinos de las Indias, clearly stated that "being part of the Indian race" should be considered as a mitigating circumstance if the Indian was the perpetrator of the crime, and as an aggravating circumstance if the Indian was its victim.[8] The Peruvian liberal legislators of the 19th century rejected this colonial legacy and emphasized the idea that all citizens were equal before the law. It is not surprising, therefore, that in the first Peruvian penal code of 1862 we find no reference to the Indian population of the country. However, the absence of the Indians from that penal code was not just an expression of the liberal notion of equality before the law. It was also the result of the blindness of Peruvians elites,which turned the Indians into invisible human beings. The code of 1862 was merely based on an adaptation of the Spanish penal code from 1848.[9] For José Simeón Tejada, one of the formulators of that code, it was only natural that the Spanish code would serve as a guide and a model for the Peruvians, whose customs, according to Tejada, were formed by “the eternal molds of the laws and the language of Castile”.[10] Thus, in the eyes of those who drafted that code, all Peruvians were equal before the law, but the term Peruvians referred mainly to the descendants of the Spanish conquerors, or at least to those who adopted the Spanish customs, laws and language.The lack of any reference to the Indian populationsin the first penal code of independent Peru was the result of ignoring their very existence.

In 1924, when the new penal code was enacted, the Indians could no longer be ignored by the Peruvian legislators. Since the second decade of the 20th century, the violent conflicts between Indian peasants and land-owners in the southern districts of the Andean range, which were often described as “Indian insurgencies”, contributed to raise the "Indian Question" to the top of the public agenda and also to strengthen and reaffirm its association with the issue of criminality. The echoes of the Mexican Revolution (and few years later also those of the Bolshevik Revolution) further contributed to the tense atmosphere in the region.[11]Moreover, the tension and violent conflicts in the south-eastern provinces also strengthened the demand that the Indians would be protected by the state.In many aspects, the new status of Indian criminals in the Peruvian criminal code of 1924was indeedpart of a wider legal project which was meant to protect the Indians throughout"tutelary legislation".

Tutelary Legislation and Criminological Discourse

Protection of the Indian was among the oft-reiterated objectives of the "New Fatherland" regime, which adopted the Indigenismo as part of its official ideology and integrationist project. One of the ways by which president Leguía sought to establish his image as “Protector of the Indian race” was through legislation, and during his period an abundance of “tutelary laws” for the Indians was proposed. This idea was also expressed in the Peruvian constitution of 1920, which declared that "the state will protect the Indian race and will dictate special laws for its development and culture in harmony with its necessities."[12]

The campaign of the indigenistas for the protection of the Indians by means of special tutelary legislation was largely based on two interrelated types of arguments:first, presenting the Indian as a victim of a long chain of abuses, exploitations and acts of violence and repression, in the past and mainly in the present. The second type of argumentation focused on constructing the image of the Indian as a powerless, incapable person, unable to defend his citizen rights by himself due to his miserable social situation and moral condition. The Indians’ condition was often presented as equivalent to that of minors, persons without legal capacity and even missing persons. The members of the Asociación Pro-Indígena wrote already in 1915 that "the personality of the Indian almost does not exist”. Therefore they recommended that the State would treat him as a person in a condition of a minor and protect him efficiently until his civil rights are restored.[13]In his essay “A Contribution to an Indian Tutelary Legislation”,published in 1918, José Antonio Encinas, one of the more prominent and influential indigenistas in the early 1920s, explained that in order to integrate the Indians into the national life there was a need to provide them with special laws that would protect them, which would take into account the situation of inequality in which they were living and that would enable them to fully exercise their rights. Encinas rejected the claims against dualistic legislation. "Today", he argued in 1918, "The law tends to diversity. The new codes are more interested in the social factor than in the individual one, precisely because the civilization created a deep social inequality that the state must eradicate."[14]